A nurse anesthetist, who was the recipient of two very unwelcome text messages from a co-worker encouraging her to have “wild sex” with her husband, lost her sexual harassment case against the co-worker and her employer. The Sixth Circuit Court of Appeals upheld the ruling against the nurse anesthetist because the acts of harassment she endured were either unrelated to her gender or too few to constitute the sort of severe and pervasive harassment required by Title VII.

Kim Graves was a nurse anesthetist at Dayton Gastroenterology, Inc. in Ohio. While she was on vacation in January 2013, she sent a text message to another nurse anesthetist, David Schum. Graves expressed her happiness with having “done nothing all week.” Schum expressed happiness for Graves, encouraging her to “have fun and wild sex.” Graves found this message offensive and inappropriate but said nothing. A week later, though, Schum sent a second text, encouraging Graves to have sex with her husband on the kitchen table. He also confessed that he did “think about sex all the time” but was “just not getting it.”

This time, Graves complained to her employer about both text messages. In response, Schum, who had become the temporary lead nurse anesthetist, tried to apologize, but Graves refused to discuss anything non-work related with him. Schum then began denying Graves lunch breaks, giving her the most difficult assignments, refusing to answer questions about work assignments, and failing to provide Graves with updated work schedules. This behavior caused Graves anxiety and headaches, and, by late March, she had submitted her resignation.

After leaving, Graves sued the employer and Schum for gender discrimination and hostile work environment in violation of Title VII. The employer and Schum asked the court for summary judgment in their favor, and the court granted their request.

Graves appealed, but she still lost. Why was this nurse’s case unsuccessful, despite all of the evidence of the many acts committed by Schum? The answer was in the way that Graves chose to pursue her case. She accused Schum and the employer of Title VII gender discrimination. She did not accuse them of impermissible retaliation in violation of the law. To succeed in a hostile work environment claim in a gender discrimination case, an employee must show, among other things, that the alleged acts of discrimination were based on the victim’s sex and were severe and pervasive.

Most of the acts that formed the crux of Graves’ case were not based upon the nurse anesthetist’s sex. Schum engaged in his campaign against Graves because she reported him to the employer, not because she was a woman. Even the two text messages, while they were unprofessional, inappropriate, and centered around very private aspects of Graves’ sex life, were still gender-neutral and did not demonstrate any sort of anti-woman hostility. They were degrading neither toward women generally or Graves specifically, and they were not especially explicit in their content. Additionally, the two text messages, by themselves, were too isolated to meet the law’s standard for severity or pervasiveness.

The appeals court’s opinion seemed to indicate that Graves missed an opportunity to use an alternate legal theory and escape summary judgment (and get her case to trial). The court pointed out that a supervisor’s harassment of a subordinate after the subordinate makes a sexual harassment complaint can constitute illegal retaliation in violation of Title VII. In this case, however, Graves did not include a retaliation claim in her complaint.

One judge dissented in this ruling. The dissent argued that the courts should have looked at the “social context” and sided with Graves. Graves and Schum were not close friends and did not share many details of their private lives, and, ultimately, Schum was a man and Graves was a woman. Schum’s texts might have constituted something short of a Title VII violation if they were said to a man but “may cross the line into harassing behavior when said to a woman.”

This decision contains several lessons for Tennessee employees and employers. For employees, the case demonstrates the importance of pursuing every possible claim available to you under the law in your discrimination case. For employers, the split decision by this Sixth Circuit panel illustrates how different judges can look at identical facts and reach dramatically different decisions regarding whether those acts constitute sexual harassment, which should remind employers of the importance of doing everything feasible to eliminate sexual harassment in your workplace. For knowledgeable advice and counsel about your rights and obligations regarding sexual harassment law, contact the hardworking Tennessee sexual harassment attorneys at Mays & Kerr. Our attorneys have assisted many employees and employers with hostile work environment and other Title VII issues, and we are here to help you too.

To speak with one of our lawyers about your case, call 1-877-986-5529.